Standing: The bedrock principle that mere desire does not equate to an injury in fact.

“As Justice Scalia memorably said, Article III requires a plaintiff to first answer a basic question: ‘What’s it to you?’”  Food & Drug Admin. v. All. For Hippocratic Med., 602 U.S. 367, 379 (2024) (quoting A. Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U.L. Rev. 881, 882 (1983)). In this summer’s roll out of highly anticipated United States Supreme Court decisions, we turn to Food and Drug Administration v. Alliance for Hippocratic Medicine. And while the decision has made waves for other reasons, it is a strong reminder that a procedural defect can always be the issue which makes or breaks your case (even when raised for the first time on appeal), no matter how long of a lifespan your lawsuit achieves. In this instance, Article III standing was yet again solidified as an absolute “bedrock constitutional requirement that th[e] Court has applied to all manner of important disputes.” All. For Hippocratic Med., 602 U.S. at 368 (quoting United States v. Tex., 599 U.S. 670, 675 (2023). 

In 2022, four medical associations, as well as several individual doctors, brought suit against the FDA in the U. S. District Court for the Northern District of Texas, challenging the lawfulness of its approval of the drug, mifepristone, and the FDA’s 2016 and 2021 actions modifying the drugs’ conditions of use. Id. at 376. The District Court held the plaintiffs had standing and were likely to succeed on the merits of their claims. Id. at 377. The FDA promptly appealed to the U. S. Court of Appeals for the Fifth Circuit and moved to stay the District Court’s order of a preliminary injunction, pending appeal. Id. After granting the stay in part, the Court of Appeals affirmed in part and vacated in part the District Court’s order.  Id.  The Court Appeals again held that the doctors and medical associations had standing but that the plaintiffs would only be likely to succeed in showing the FDA’s actions in 2016 and 2021 were unlawful.  Id. at 378  When the Supreme Court granted certiorari with respect to the actions held unlawful by the Court of Appeals, it first considered the threshold question of whether the plaintiffs have standing to sue.  Id. Based on its analysis, the Court reversed the Fifth Circuit’s determination that the plaintiffs had standing. Id.

To establish standing, a plaintiff must have a personal stake in the dispute: a plaintiff must be able to demonstrate that (i) the plaintiff has or likely will suffer an injury in fact, (ii) that the injury likely was caused or will be caused by the defendant, and (iii) the injury can likely be redressed by the judicial relief the plaintiff requests. See Summers v. Earth Island Institute, 555 U.S. 488, 493 (2009). The Court held that physicians “mere desire” to make mifepristone less available does not satisfy the injury-in-fact requirement. 602 U.S. at 386 (“Rather, the plaintiffs say that they are pro-life, oppose elective abortion, and hae sincere legal, moral, ideological, and policy objections to mifepristone being prescribed and used by others.) (emphasis in oridinal). The Supreme Court’s analysis on standing is a cue for all litigation and appellate attorneys to remember that pesky requirement we all learned as first year law students. No matter how far in the litigation process a case may proceed, parties cannot waive standing and courts retain the ability to raise the issue sua sponte

Likewise, the Texas Supreme Court has made clear that standing is first examined in a suit, because as a component of subject matter jurisdiction, courts have “an obligation to examine [their] jurisdiction any time it is in doubt.” Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 773 (Tex. 2020). Parallel to the constitutional test for Article III standing, Texas’s test looks to federal standing jurisprudence to determine if the requirement of establishing standing has been met.  Id. at 776. As noted repeatedly, parties cannot waive constitutional standing and, therefore, can raise standing for the first time on appeal. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). In addition, Texas courts may address the issue sua sponte. Id. at 445-46. Specifically, the Texas Supreme Court reasoned:

If we were to conclude that standing is not reviewable on appeal at least three undesirable consequences could result. First and foremost, appellate courts would be impotent to prevent lower courts from exceeding their constitutional and statutory limits of authority. Second, appellate courts could not arrest collusive suits. Third, by operation of the doctrines of res judicata and collateral estoppel, judgments rendered in suits addressing only hypothetical injuries could bar relitigation of issues by a litigant who eventually suffers an actual injury. We therefore hold that standing, as a component of subject matter jurisdiction, cannot be waived in this or any other case and may be raised for the first time on appeal by the parties or by the court.

See id.

To correctly raise standing, defendants should address it in a plea to the jurisdiction at the trial court and potentially, a motion to dismiss in the appellate court. And as a plaintiff, raise this question to your client: what’s it to you?